SMITH v. SULLIVAN

Plaintiff Ossie Smith ("Smith") brings this motion for award
of attorney's fees pursuant to both Title 28 U.S.C. § 2412
(Equal Access to Justice Act), and Title 42 U.S.C. § 406. For
the reasons set forth below, Smith's motion is denied as to the
fees requested under the Equal Access to Justice Act, but the
motion for fees under the Social Security Act is granted.

Smith applied for Social Security disability benefits on
February 25, 1983 for the on-the-job injuries she sustained.
Her application was denied initially and again upon
reconsideration. In a hearing held in January 1984, an
administrative law judge denied Smith's request for disability
benefits, maintaining that she was not permanently disabled. In
October 1984, the Appeals Council affirmed the denial. At a
second hearing in June 1987, Smith's request was again rejected
for similar reasons, and in October 1987 the Appeals Council
again affirmed, making this denial the final decision of the
Secretary of Health and Human Services (the "Secretary").

Smith thereafter commenced an action in this court pursuant
to Title 42 U.S.C. § 405(g), which allows judicial review
of the final decisions of the Secretary. In a Stipulation and
Order filed April 21, 1989 pursuant to a settlement agreement,
both parties agreed to a remand "solely for the calculation of
benefits" to which Smith was found to be entitled. The court
dismissed the case with prejudice and without costs to either
party. This motion for attorney's fees was considered fully
submitted as of February 2, 1990.

The Equal Access to Justice Act

The Equal Access to Justice Act ("EAJA") allows a party
prevailing against the United States to recover attorney's fees
where the United States acted in bad faith in denying the claim
(Section 2412(c)(2)), or where the government's position was
not substantially justified (Section 2412(d)(1)(A)). Section
2412(d)(1)(B) of EAJA confers subject matter jurisdiction to
federal district courts only if the claimant applies for the
fees within thirty days of entry of final judgment. Allen v.
Secretary of Health & Human Serv., 781 F.2d 92, 94 (6th Cir.
1986); Dunn v. United States, 775 F.2d 99, 102-103 (3d Cir.
1985); Clifton v. Heckler, 755 F.2d 1138, 1144-45 (5th Cir.
1985); Action on Smoking & Health v. Civil Aeronautics Bd.,
724 F.2d 211, 225 (D.C. Cir. 1984); Tripodi v. Heckler, 100 F.R.D.
736, 739 (E.D.N.Y. 1984) ("[t]he thirty-day time period begins
to run when a final order is entered in the district court
dismissing the case").

Section 2412(d)(2)(G) of EAJA defines "final judgment" as
"judgment that is final and not appealable." "In order for
there to be final judgment, the court must enter an order
dismissing the case, and such order must be entered even if a
plaintiff has been awarded benefits at the administrative level
after a remand." LaManna v. Secretary of Health & Human Serv.,
651 F. Supp. 373, 375 (N.D.N.Y. 1987). The reference point for
attorney's fees for EAJA purposes is where the plaintiff
prevails in his or her action to obtain benefits because
"obtaining benefits . . . is the object of a social security
claimant's litigation." McGill v. Secretary of Health and Human
Serv., 712 F.2d 28 at 30 (2d Cir. 1983).

Smith contends that her application for attorney's fees was
within the thirty-day time limit prescribed by Section
2412(d)(1)(B) because the judgment became "final" only after
the time had expired for Smith to seek review of the
calculation of benefits by the Secretary. Since the benefits
were calculated and awarded on October 2, 1989, and since Smith
had sixty-five days to seek review of the calculation, Smith
argues that any fee application filed between December 7, 1989
and January 6, 1990 is timely.

Finally, the House Judiciary Committee has maintained that
"[i]f a settlement is reached and [a] fee award is not part of
the settlement, then the thirty-day period would commence on
the date when the proceeding is dismissed pursuant to the
settlement . . ." H.R.Rep. No. 120, 1st Sess., pt. 1, at 18 n.
26, reprinted in 1985 U.S.Code Cong. and Admin.News 132, 146.

Since the case was remanded solely for the calculation of
benefits,*fn1 the dismissal with prejudice by the court
pursuant to a settlement agreement, with the stipulation of no
further appeal, was a final judgment. Accordingly, the motion
for EAJA fees is untimely because Smith was required to file
for fees ...

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